Registration Act, 1908 – ss. 32, 33 and 60 – Execution of sale deed on the strength of a deed of Power of Attorney – Nonproduction of the deed of power of attorney – Effect of, to the case of plaintiff in the suit – Power of attorney (PoA) executed outside India – Presumption as to correctness of the PoA – On facts, PoA allegedly executed in East Pakistan by the original owner in favour of respondent No. 2 – Respondent No. 2 thereafter executed two sale deeds transferring the suit property firstly in his own favour and then in favour of his wife – Respondents then filed suit for declaration of title over the subject land and recovery of khas possession from the appellants – Respondent no. 2 claimed his ownership on the basis of sale deed executed by the respondent no.
1 in his own favour on the basis of PoA executed by the original owner, however, the same PoA not produced before the trial court – Appellant’s case that they are the owner of the part of the suit property and have been in possession for more than 40 years – Trial court dismissed the suit since no right, title or interest was established in favour of respondent No.2 for want of PoA for proper execution of the sale deed in his favour; and that the provisions of s. 33(1)(c) not complied with – First appellate court upheld the same – However, the High Court allowed the Second Appeal by drawing presumption u/s. 60 in respect of PoA by virtue of endorsement – High Court directed the appellants to handover the vacant possession of the suit land to the respondent – On appeal, held: In view of the difference of opinion, the matter referred to the larger bench – Reference to larger Bench – Power of attorney. Referring the matter to larger Bench, the Court Per M.R. SHAH, J.
HELD: 1.1 When the plaintiffs claimed title on the basis of the aforesaid two sale deeds dated 2.9.1968 and 29.09.1968, it was for the plaintiffs to prove even the execution of the sale deeds. The defendants were not required to challenge the sale deeds in the suit filed by the plaintiffs, who prayed for a decree for a declaration of title in their favour. When plaintiff No.2 claimed title on the basis of the PoA executed by the original owner and thereafter executed the sale deed in favour of plaintiff No.1 as PoA of the original owner, the conditions provided under Section 33(1)(c) of the Registration Act are required to be strictly complied with. [Para 6][158-G-H; 159-A]
1.2 As per Section 32 of the Registration Act, every document to be registered under the Registration Act shall be presented at the proper registration office by some person executing or claiming under the same, or, by the agent of such a person, representative or assign, duly authorised by PoA executed and authenticated in the manner mentioned in Section 33(1)(c) of the Registration Act. Section 33 of the Registration Act provides that for the purposes of Section 32, only those power of attorneys shall be recognised as are mentioned in Section 33(1). As per Section 33(1)(c) of the Act, if the principal at the time of execution of the PoA does not reside in India, a PoA executed before and authenticated by a Notary Public, or any Court, Judge, Magistrate, Indian Consul or Vice-Consul, or representative of the Central Government shall be valid. In the instant case, the requirement of Section 33(1)(c) of the Act has not been satisfied at all. Section 32 of the Act is to be read along with Section 33(1)(c) of the Registration Act. Only in a case where the execution of the PoA is as per Section 32 read with Section 33(1)(c) of the Act, there shall be statutory presumption under Section 60 and/or under the provisions of the Registration Act. Therefore, the High Court committed a grave error in drawing the statutory presumption in favour of the plaintiffs and more particularly with respect to alleged PoA alleged to have been executed by the original owner in favour of plaintiff No.2. As such, there were concurrent findings recorded by both the courts below on non-compliance and/or non-fulfilling the conditions mentioned in Section 33(1)(c) of the Registration Act. By drawing the statutory presumption and without properly appreciating and/or considering the fact that there is a non-compliance of Section 33(1)(c) of the Registration Act there cannot be any statutory presumption, the High Court has set aside the concurrent findings recorded by both the courts below, in exercise of powers under Section 100 CPC. [Para 7][160-F-H; 161-A-D]
1.3 Even the conduct on the part of the plaintiffs, more particularly on the part of plaintiff No.2, executing the second sale deed in favour of plaintiff No.1-his own wife as a PoA of original land owner deserves serious consideration. Even according to the plaintiffs, on the basis of the PoA alleged to have been executed by the original land owner, plaintiff No.2 executed the registered sale deed in his own favour dated 3.9.1968. If that be so, in that case, there was no reason for him to execute the subsequent sale deed in favour of plaintiff No.1-his own wife as a PoA of the original land owner. Once he became the owner on the basis of a registered sale deed dated 3.9.1968, which was executed by him in his own name as a PoA of the original owner, he could have executed the sale deed in favour of plaintiff No.1 as the owner and not as a PoA of the original owner. [Para 8][161E-G]
1.4 Another conduct on the part of the plaintiffs submitting the application to amend the plaint under Order 6 Rule 17 CPC submitted before the first appellate court also creates doubts about the genuinity of the PoA. It was never the case on behalf of the plaintiffs before the trial court and in the suit that the PoA was handed over by the plaintiffs to original defendant No.1 and that despite his demands he never returned the same. Having found and realised that the non-production of the PoA had gone against them, subsequently, before the first appellate court, the plaintiffs sought to make out a case that the PoA was handed over by plaintiff No.2 to original defendant No.1 and that despite his demands, never returned the same. The amendment sought under Order 6 Rule 17 CPC was rightly refused by the first appellate court. The plaintiffs tried to make out altogether a new case which was not even the case of the plaintiffs earlier. This conduct on the part of the plaintiffs also deserves serious consideration and it creates serious doubts on the genuinity of the PoA. In that view of the matter, the High Court committed a serious error in drawing a statutory presumption as to the authenticity of the sale deeds. There may be a statutory presumption as per Section 60 of the Registration Act where all other requirements of execution of the sale deed, required to be complied with under the Registration Act and the genuineness of the PoA on the basis of which the sale deed was executed is not doubted. [Para 9][161-G-H; 162-A-D]
1.5 As the PoA is not produced on record; the executant of the PoA in favour of plaintiff No.2 has not stepped into the witness box; there is a non-compliance of Section 33(1)(c) of the Registration Act; and the plaintiff no.2 is claiming title on the basis of the PoA alleged to have been executed by the original owner which is not forthcoming and that plaintiff no.1 is claiming the title on the basis of the sale deed dated 29.09.1968 executed by plaintiff No.2 as a PoA holder of the original owner which is not forthcoming, the trial court was justified and right in dismissing the suit and refusing to pass a decree for a declaration of title in favour of the plaintiffs. The same was rightly confirmed by the first appellate court. The High Court committed a serious error in decreeing the suit. The impugned judgment and order of the High Court is unsustainable both, on law as well as on facts. The impugned judgment and order passed by the High Court decreeing the suit is hereby quashed and set aside and the judgment and decree passed by the trial court, confirmed by the first appellate Court, is restored. [Paras 10, 11][162-D-H] Prem Singh and others v. Birbal and others, (2006) 5 SCC 353 : [2006] 1 Suppl. SCR 692; H. Siddiqui v. A. Ramalingam (2011) 4 SCC 240 : [2011] 5 SCR 587; Anil Rishi v. Gurbaksh Singh (2006) 5 SCC 558 : [2006]
1 Suppl. SCR 659; Sebastio Luis Fernandes v. K.V.P. Shastri (2013) 15 SCC 161 : [2013] 11 SCR 1076; J. Yashoda v. K. Shobha Rani (2007) 5 SCC 730 : [2007]
5 SCR 367; Rajni Tandon v. Dulal Ranjan Ghosh
Dastidar (2009) 14 SCC 782 : [2009] 11 SCR 686; Amar Nath v. Gian Chand 2022 SCC OnLine SC 102 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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